Court rules SA's notice of withdrawal from ICC is unconstitutional

Darren Sullivan
February 23, 2017

South Africa's main opposition party had gone to court, saying the government's notice was illegal because parliament was not consulted.

It said the country should not join "pariah states who have no respect for human rights". While the executive branch has unfettered power to enter into global treaties, in its precedent-setting judgment the court found that it can not withdraw from those same treaties without legislative approval. It takes one year for a withdrawal to take effect after initial notification, according to the terms of the Rome Statute.

Meanwhile, government said it will study the judgment and decide whether or not to appeal.

The ICC, which opened in July 2002 and has 124 member states, is the first legal body with permanent worldwide jurisdiction to prosecute genocide, crimes against humanity, and war crimes.

"South Africa's justice minister shocked the country last October when he announced it would pull out of the International Criminal Court", Peter Granitz reports for NPR from Pretoria.

Under the Rome Statute, signatory countries have a legal obligation to arrest anyone sought by the ICC.

South Africa said it was quitting the ICC because membership conflicted with diplomatic immunity laws.

The court noted that the power to coordinated matters as regards treaties rest on the Executive but must get approval from the parliament before doing so.

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In its ruling on Wednesday, the judges of the High Court in Pretoria ordered the government to revoke its withdrawal from the global court.

The judgment will compel South African officials, as they move to comply with the court's decision, to reflect and reconsider the withdrawal notice.

Instead, we should recommit our country to the human rights-based foreign policy spearheaded by the late President Nelson Mandela.

South Africa is now out of step with other progressive and democratic African countries who have reaffirmed their commitment to the ICC. In other words, the court said that how the government withdrew from the ICC was unconstitutional, not the act of withdrawing itself.

Pretoria first formally notified the ICC it wanted to withdraw in October, 2016. It was not immediately clear whether the court ruling has stopped the clock on that process.

In March, the Constitutional Court ordered Zuma to repay some of $16 million spent on enhancing his Nkandla home in rural KwaZulu-Natal province.

However, the Democratic Alliance argued the government's intention to leave the ICC directly contradicted South Africa's commitment and legal obligations to global justice and human rights.

In a boost for the ICC, however, Adama Barrow, the new democratically elected president of the Gambia, recently reversed that decision - made by Yahya Jammeh, the west African state's former authoritarian leader.